Environmental Defense Fund has made no secret of our view that many elements of the final framework rules issued by the Trump EPA in July to implement recent reforms to the Toxic Substances Control Act (TSCA) are contrary to law and fail to reflect the best available science. The rules EPA had proposed in January were heavily rewritten by a Trump political appointee, Dr. Nancy Beck, who until her arrival at the agency at the end of April was a senior official at the chemical industry’s main trade association, the American Chemistry Council (ACC).
In our view, the final rules largely destroyed the careful balance that characterized the efforts to reform TSCA and the final product of that effort, the Lautenberg Act. In many respects, the final rules governing how EPA will identify and prioritize chemicals and evaluate their risks now mirror the demands of the chemical industry, reflected in comments they had submitted earlier – some of which Beck herself had co-authored.
These are among the reasons EDF as well as other NGOs and health and labor groups have had no choice but to file legal challenges to these rules.
Lest you have any doubt that the final rules are heavily skewed in industry’s direction, a development in these legal cases in September should dispel it. A broad coalition of industry groups – including Dr. Beck’s previous employer ACC – has filed motions to intervene in these cases in order to defend EPA’s rules (see here and here). Parties to the motion constitute a remarkable list:
- American Chemistry Council
- American Coatings Association
- American Coke and Coal Chemicals Institute
- American Fuel and Petrochemical Manufacturers
- American Forest and Paper Association
- American Petroleum Institute
- Battery Council International
- Chamber of Commerce of the United States of America
- EPS (Expanded Polystyrene) Industry Alliance
- IPC – Association Connecting Electronics Industries
- National Association of Chemical Distributors
- National Mining Association
- Polyurethane Manufacturers Association
- Silver Nanotechnology Working Group
- Society of Chemical Manufacturers and Affiliates (SOCMA)
- Styrene Information and Resource Center
- Utility Solid Waste Advocacy Group
Yesterday [9/11] was the deadline for parties seeking to intervene in the cases to have done so. Among those that had issued a “call to arms” to industry to intervene to defend EPA’s rules were leading Washington, DC industry law firms that represent these trade groups and their members. For example, Wiley-Rein issued this client alert five days after our lawsuits were filed (emphasis added):
Also on August 11th the Natural Resources Defense Council, Safer Chemicals Healthy Families Coalition, the Environmental Defense Fund and other environmental advocacy organizations filed lawsuits challenging the EPA’s final Prioritization and Risk Evaluation Rules. While the petitions are light on details, they generally allege that EPA abused its discretion when issuing the final rules. The specific issues the petitioners have with the final rules are not yet clear, but these groups have publicly expressed concern with EPA’s interpretation of how it will review the conditions under which a chemical is known or reasonably foreseen to be used. Therefore, companies that make, import, process or use a chemical that is being evaluated by EPA now or in the future need to consider getting involved and supporting the rule [sic] as it now stands.
Step back for a minute and consider the unusual nature of this development: When was the last time such a heavy-hitters list of industry groups rushed in to support EPA regulations?
More evidence of the topsy-turvy world we’re living in under the most anti-environmental and anti-regulatory administration in modern history.
Despite its professed support just over a year ago for balance and compromise in TSCA reform, the industry has shifted in this new political climate to short-term, opportunistic thinking. But that isn’t going to solve the problem that brought the industry to the TSCA negotiating table: The lack of confidence in the safety of its enterprise, a problem that can only be expected to grow as regulations are rolled back and the public learns more about the millions of pounds of chemicals released into the environment from industrial facilities in the wake of hurricanes.
Richard Denison, Ph.D., is a Lead Senior Scientist.
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